The Bill Kumpe Law Firm

 

 

 

Adult guardianship proceedings are always heartbreaking.  Unless the incapacitated adult is unconscious or otherwise unable to understand the proceedings, there is almost always a terrible feeling of betrayal even though everyone involved is usually trying to act in their best interest.

 

The guardianship process can be very frightening for the incapacitated adult.  They must be formally served with pleadings giving them notice of the guardianship hearing and providing them with a copy of the petition alleging that they are mentally incapactitated.  If the incapacitated adult has the abilty to understand the pleadings, they are very likely to become angry and agitated. 

If they are already in delicate physical or mental health, the very act of serving them may physically or mentally harm them.

 

And, if they are able, they have the right to attend the hearing.  They may hire their own attorney or have one appointed for them by the court.  At this point, what was already a hearbreaking family situation can degenerate into a full courthouse brawl, destroying life long family relationships and wreaking havoc on the physical and mental health of all concerned.

 

The saddest thing about adult guardianships are that most of them could have been avoided.  A simple "springing" power of attorney form executed before the incapactitated person loses competence allows a designated friend or family member to begin helping any time the incapactiated person's personal or attending physicians find that they are no longer competent.  In this way, the entire courthouse drama is avoided and the now incapacitated person has the ability to choose who will help them when they can no longer help themselves.

 

A "springing" power of attorney is a vital part of every good estate plan.  I include one in every will or trust that I draft unless I am specifically instructed not to by the client.

 

Most people concentrate on the will in their estate plan. But that is a mistake. The power of attorney and advanced medical directive are actually the two most important parts of the overall package since they give the client the ability to make arrangements for their own care and management of their business affairs should they outlive their ability to handle these needs for themselves.